Video 8:21
Discussing a bail problem

Frances BellUpdated
Mon 12 Jul 2010, 7:48 AM AEST

We speak to criminal defence lawyer Rob Stary and secretary of the Police Association Greg Davies on whether or not not enough is done in the state to deter people from committing a crime while on bail.

Transcript

FRANCES BELL, PRESENTER: This week, Opposition Leader Ted Baillieu promised a Coalition government would overhaul the state's bail laws, arguing the existing legislation is weak and doesn't do enough to deter people from reoffending while on bail. Opinion on the proposed changes is split.

FRANCES BELL: Greg Davies, more than 90 per cent of bail decisions in Victoria are made by police. How often are people reoffending while they're on bail?

GREG DAVIES: Well the Law Reform Commission figures tell us that almost a third of people reoffend while on bail and that's about the only set of statistics that we have to go by. So that's an inordinately large number of people that are obviously placing the community at risk, so we have serious and legitimate concerns about it.

FRANCES BELL: Rob Stary you've made many applications for bail on behalf of clients in your time. Is bail a privilege or a right?

ROB STARY: Well there is a presumption of bail, but there's a series of offences that remove that presumption of bail and they're usually for serious offences including drug trafficking, offences of violence, domestic violence. And so what's happened over the last 10 years particularly is that presumption of bail has now been pared back. One statistic we do know is that there are more people in jail than ever before, there are more remand prisoners in jail than ever before and yet the incidence of serious crime over the last 10 years has reduced.

So the problem, in my view, is not as significant as some people make out and what we need to be careful about is that we don't engage in a process of scaremongering, particularly amongst politicians, that might suggest that the problem is worse than what it actually is. Because the statistics simply don't show that.

FRANCES BELL: Have you represented clients who have reoffended while on bail?

ROB STARY: Oh, sure. And what we have to understand is the demographic of the typical client who appears in the Magistrates Court. If the Magistrates Court deals with about 100,000 cases a year, most of those people who appear on a regular basis have either substance abuse problems and so they're vulnerable. They're aged normally between 18 and 25. They're transient in their personal circumstances and we know that mental illness is a significant factor - contributing factor. So they're always gonna be vulnerable to some degree of re-offending.

FRANCES BELL: Greg Davies, the Coalition wants to make breaching bail conditions an offence in itself carrying a penalty of up to three months jail. Do you think this would be an effective deterrent to re-offending?

GREG DAVIES: Well certainly it would be a deterrent. How effective it might be would remain to be seen, I suppose. It's our view and the view of our members who have to go out and investigate the crimes that are committed by people who do these things and deal with the victims of these crimes, that should somebody - the purpose of bail basically is to ensure that somebody turns up for court and that they behave themselves in the meantime. And what this policy appears to be aimed at is if a person breaches that promise, then they've done their chance and in they go, or there are more significant and strenuous conditions put upon them in order to protect the community.

ROB STARY: Well, under the Bail Act the magistrate has to take into account, for instance, the person's prior history on bail. They're obliged to do that. They're obliged to take into account whether they're a risk of further offending, whether they'll interfere with prosecution witnesses, whether they'll interfere with the administration of justice, and if a person commits an offence whilst on bail the Sentencing Act says that any penalty that they receive, any sentence of imprisonment for instance, must be served cumulatively, in other words on top of any other sentence. So there are very strict conditions. I think thought - I think the person who conceived the Coalition's bail paper either hasn't read the Sentencing Act or the Bail Act or certainly hasn't had any practice in the criminal law.

GREG DAVIES: There's an issue in there though, Rob, isn't there, to be fair, that if a person fails to appear on bail, they may be charged with that and that matter dealt with and then that becomes part of their criminal prior history. If they breach a condition of the bail, that's another story.

FRANCES BELL: And this is the argument from the Coalition.

GREG DAVIES: And that's the argument. So, it might be that they're charged with a specific offence, perhaps interfering with witnesses and trying to pervert the course of justice. So they'll have a criminal prior for that if that charge succeeds at court. But they won't have any record that they actually breached that condition. They may well be remanded in custody, but there won't be anything on their criminal record to indicate to anyone what's occurred. In the end it doesn't much matter to you or I or the person next door whether the person who burgles their home or steals their car is disadvantaged, upset or got some sort of problem. The fact is that they have and if they're on bail for a serious offence, it's our view that they then lose the right to be on bail.

FRANCES BELL: What about one of the more controversial parts of these proposals from the Coalition, and that is making the wearing of electronic monitoring devices as an optional condition of bail. Rob Stary, the Law Institute has described this idea as absurd. Why?

ROB STARY: Well, firstly, because any person charged who's charged with an offence under our Westminster common law system has a presumption of innocence, even though the presumption of bail might be removed, they retain presumption of innocence. And the court can then impose any other special condition that they might see appropriate, abiding by curfews, reporting to police being under the supervision of police, not associate with co-offenders and a raft of other conditions that would act as monitoring of the person. The problem with electronic tracking devices is that if we introduce them to bail, then we're at the risk of introducing them into other areas of law. For instance, there would be an argument mounted that any person who has an order made against their licence, if they're a suspended driver or a disqualified driver, why wouldn't they then wear a tracking device to ensure that they're not driving a vehicle and putting other road users at risk, for instance.

FRANCES BELL: Greg Davies, a slippery slope or a good idea?

GREG DAVIES: I don't think it's a slippery slope, really. I mean, certainly it's done in Western Australia, it's done in South Australia, it's done in other places around the world. I don't know that it would ever be able to be used for someone who drives a motor vehicle because every time they got on a bus, all of a sudden you'd have to send carloads of police out because it'd look like they were driving. But, look, you would think in exceptional circumstances better that somebody wear a tracking device than be incarcerated pending a trial when they do still have that presumption of innocence.

ROB STARY: We know historically what happens is that once the police and services are armed with further powers, for instance the widespread use of capsicum spray was said to be used as an alternative to the use of lethal force or to be used as a last resort, and we now know that capsicum spray for instance is routinely used in any volatile situation. It's the same with the use of Taser guns. We know that Taser guns when they were rolled out were said to be used again as an alternative to the use of lethal force. But we know historically, particularly in the US, where they're used very routinely, and so we oughta be ...

GREG DAVIES: I think we're a little bit off the track here, and the American example is not necessarily always right here and they have a number of law enforcement issues here that are very different to the way we do things.

ROB STARY: That's true, though, Greg, but what we need to be - we need to be very cautious. Let's have the debate, by all means, but let's be very cautious before we start giving the state these extra powers, particularly where the person is presumed innocent prior to any finding of guilt. Different once the person's found guilty, for instance in home detention where people can wear tracking devices; but where they're presumed innocent, I don't think we oughta go down that path.

GREG DAVIES: And again, it basically comes down to the rights of individuals versus the rights of the community, and when somebody can convince me that the rights of one person, no matter what their issues might be, override the rights of five and a half million others, then I'll be convinced that we're on the wrong tram.

FRANCES BELL: Greg Davies and Rob Stary, thanks for joining us on Stateline.